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The Principle of Judicial Sincerity
Micah Schwartzman ∗
∗
University of Virginia School of Law, [email protected]
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c
Copyright 2007
by the author.
The Principle of Judicial Sincerity
Micah Schwartzman
Abstract
The idea that judges have a duty to be sincere or candid in their legal opinions
has been subject to systematic criticism in recent years. Critics have argued that
a strong presumption in favor of candor threatens judicial legitimacy, deters positive strategic action on multi-member courts, reduces the clarity and coherence of
doctrine, erodes collegiality, and promotes the proliferation of fractured opinions.
Against these and other objections, I defend the view that judges have a duty to
give sincere public justifications for their legal decisions. After distinguishing the
concepts of sincerity and candor, I argue that the values of legal justification and
publicity support a principle of judicial sincerity. This principle imposes weaker
constraints than a general duty of judicial candor. But while candor may be desirable, judges who provide sincere justifications for their decisions satisfy the
demands of legitimate adjudication.
The Principle of Judicial Sincerity
Micah Schwartzman∗
INTRODUCTION ........................................................................................... 1
I. CONCEPTS OF SINCERITY AND CANDOR ................................................. 6
A. The Concept of Sincerity................................................................ 6
B. The Concept of Candor.................................................................. 8
II. THE VALUE OF LEGAL JUSTIFICATION ................................................. 11
A. The Principle of Legal Justification ............................................ 12
B. Legal Justification and Legitimacy.............................................. 15
III. THE VALUE OF PUBLIC JUSTIFICATION ............................................... 19
A. The Publicity Condition............................................................... 19
B. The Value(s) of Publicity ............................................................. 22
IV. THE PRINCIPLE OF JUDICIAL SINCERITY ............................................. 26
A. Sincerity, Publicity, and Justification.......................................... 26
B. Principles of Sincerity and Candor ............................................. 29
V. TWO OBJECTIONS ................................................................................. 32
VI. THE LIMITS OF JUDICIAL SINCERITY ................................................... 38
CONCLUSION ............................................................................................ 39
INTRODUCTION
A strong presumption against lying applies to most of our interactions
with other people. The same presumption would seem to hold in the
context of judicial decisionmaking. Since it is usually wrong to deceive
others, judges should be truthful about the reasons for their opinions. At
the very least, and barring exceptional circumstances, they should not
knowingly make statements that they think are false or seriously
misleading. Indeed, this principle seems so straightforward that it may be
hard to believe that anyone seriously doubts it.1
∗
Associate Professor of Law, University of Virginia School of Law. For comments,
I would like to thank Rachel Brewster, Charles Fischette, Kent Greenawalt, Leslie
Kendrick, Jody Kraus, Matt Krueger, Dan Markel, Jonathan Quong, Seana Shiffrin,
Dale Smith, Martin Totaro, Shlomit Wallerstein, Steven Walt, and members of the
UCLA Legal Theory Workshop.
1
See David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 731
n.4 (1987).
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Judicial Sincerity
Despite its presumptive appeal, however, the idea that judges must
adhere to a principle of sincerity is surprisingly controversial. Some
judges and legal theorists reject the notion that judges must really believe
what they say in their legal opinions. Although this view probably
remains a minority position in the academy and on the bench, it has been
advanced explicitly with increasing force in recent years.2
Those who oppose a strong presumption in favor of judicial sincerity
raise a diversity of objections to it. They argue that sincerity and candor
must often be sacrificed to maintain the perceived legitimacy of the
judiciary;3 to obtain public compliance with controversial judgments;4 to
secure preferred outcomes through strategic action on multi-member
courts;5 to promote the clarity, coherence, and continuity of legal
doctrine;6 to avoid the destructive consequences of openly recognizing
“tragic choices” between conflicting moral values;7 to preserve
collegiality and civility in the courts;8 and to prevent the unnecessary
proliferation of separate opinions.9 More generally, critics argue that a
2
See RICHARD A. POSNER, LAW, PRAGMATISM AND DEMOCRACY 343, 350-52
(2003); Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV.
1307 (1995); Martin Shapiro, Judges as Liars, 17 HARV. J.L. & PUB. POL’Y 155 (1994);
Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 GEO. L. J. 353
(1989). Systematic criticism of judicial candor is a fairly recent phenomenon. But see
Shapiro, supra note 1, 731 n.4 (citing earlier examples); Robert A. Leflar, Honest
Judicial Opinions, 74 NW. U. L. REV. 721, 723-29 (1979) (same).
3
Book Note, Democracy and Dishonesty, 106 HARV. L. REV. 793, 794-95, 796
(1993); Idleman, supra note _, at 1388-1392.
4
MEIR DAN-COHEN, HARMFUL THOUGHTS: ESSAYS ON LAW, SELF, AND MORALITY
28-32 (2002); Alan Hirsch, Candor and Prudence in Constitutional Adjudication, 61
GEO. WASH. L. REV. 858, 863-66 (1993).
5
See Evan H. Caminker, Sincere and Strategic Voting Norms on Multimember
Courts, 97 MICH. L. REV. 2297, 2312-2330, 2347-2350 (1999); Lewis A. Kornhauser
and Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81
CAL. L. REV. 1, 54-55 (1993).
6
Jan Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections
Between Law and Political Science, 20 STAN. L. REV. 169, 239-40 (1968); Grant
Gilmore, Law, Logic and Experience, 3 HOW. L. J. 26, 37-38 (1957); Idleman, supra
note _, at 1392-1394;
7
GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 172-74, 178
(1982); Guido Calabresi, Bakke as Pseudo-Tragedy, 28 CATH. U. L. REV. 427, 429-32
(1979); GUIDO CALABRESI AND PHILIP BOBBITT, TRAGIC CHOICES 24-26, 195-97
(1978).
8
Idleman, supra note _, at 1391-92.
9
Posner, supra note _, at 343; Patricia M. Wald, The Rhetoric of Results and the
Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371, 1374 (1995); cf. Ruth
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“purist” emphasis on the need for honesty in judicial decisionmaking
ignores the myriad institutional considerations that judges must
continuously balance in performing the “prudential” functions assigned
to them.10 To argue for rigid adherence to a norm of sincerity or candor
is said to be naïve, foolhardy, and even dangerously utopian.
With all of these institutional objections arrayed against conventional
wisdom, it may be difficult to see the initial normative appeal of a strong
principle of judicial sincerity. There are two ways of recovering this
principle from its prudentialist or pragmatist critics. The first is to
marshal sufficient reasons of legal and political expediency to generate a
strong presumption supporting adherence to a norm of sincerity.
Accordingly, proponents of greater candor in the courts have argued that
transparent decisionmaking constrains the exercise of judicial power;11
makes judges more accountable to the law;12 provides better guidance to
lower courts and litigants;13 promotes trust and reduces public
cynicism;14 and strengthens the institutional legitimacy of the courts.15
Like the arguments mentioned above, these claims rest on complicated
and speculative empirical judgments, but they are the sort of arguments
that pragmatists must take seriously. If following a general rule favoring
sincerity or candor produces the most prudential or pragmatic
outcomes—whatever those happen to be—then following the rule is
probably justified.16
Bader Ginsburg, Remarks on Writing Separately, 65 WASH. L. REV. 133, 142-43, 149
(1990).
10
See Hirsch, supra note _, at 863-70 (noting contrast between “purists” and
“prudentialists”); Idleman, supra note _, at 1313, 1395-98, see also Stephen Ellmann,
The Rule of Law and the Achievement of Unanimity in Brown, 48 N.Y.L. SCH. L. REV.
741, 742 (2005) (defending “in broad terms the proposition that it is not always the
obligation of the judge to vote for, and express, all and only the propositions of law and
fact that he or she believes”).
11
Shapiro, supra note 1, at 737.
12
Paul Gewirtz, Remedies and Resistance, 92 YALE L. J. 585, 667 (1983); see also
Idleman, supra note _, at 1337 n.90 (collecting citations).
13
Kathleen Waits, Values, Intuitions, and Opinion Writing: The Judicial Process
and State Court Jurisdiction, 1983 U. ILL. L. REV. 917, 934 (1983).
14
Shapiro, supra note 1, at 737-38.
15
Gewirtz, supra note _, at 671.
16
Shapiro, supra note 1, at 738 (“Perhaps I am arguing for nothing more than a
species of rule-utilitarianism that attaches heavy weight to considerations that might not
be evident to a particular instance but that derive force from their cumulative effect.”).
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The problem with this kind of prudential response is that it fails to
explain the normative force behind the conventional wisdom that judges
should not lie or deliberately mislead in their opinions. In our ordinary
moral thinking, duties of truth-telling are not justified merely because
they produce good outcomes. Rather, the duty to speak truthfully and
openly is thought to be an independent constraint on our actions.17 This
fact about our ordinary experience suggests a second way to defend a
principle of judicial sincerity, namely, by explaining its appeal without
relying solely on prudential considerations.18 My aim in what follows is
to provide such an account. Although consequentialist claims will come
into play, as we shall see, their role will be subordinate in an argument
motivated primarily by moral and political values central to the process
of adjudication.
Here, then, is a sketch of the argument I have in mind for defending a
principle of judicial sincerity: Judges are charged with the responsibility
of adjudicating legal disagreements between citizens. As such, their
decisions are backed with the collective and coercive force of political
society, the exercise of which requires justification. It must be defended
in a way that those who are subject to it can, at least in principle,
understand and accept. To determine whether a given justification
satisfies this requirement, judges must make public the reasons for their
decisions. Those who fail to give sincere legal justifications violate this
condition of legitimacy. They act against the demands of the adjudicative
role assigned to them. In extraordinary cases, judges may be justified in
reaching beyond the limits of their authority. But this possibility defines
a very narrow exception. Under ordinary circumstances, judges have a
general duty to conform with a principle of sincerity in their
decisionmaking.
In developing this argument for judicial sincerity, I will have
something to say about broader requirements of disclosure and
17
There are obviously deep issues lurking here concerning long-standing debates
about the relative merits of consequentialist and deontological ethics. But such matters
are unavoidable in arguments about the value of sincerity and candor. See SISSELA BOK,
LYING chs. 3-4 (1978); Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 643
n.26 (1995); Larry Alexander & Emily Sherwin, Deception in Morality and Law, 22
LAW & PHIL. 393, 395-404 (2002).
18
See, e.g., Ronald Dworkin, Introduction, in A BADLY FLAWED ELECTION:
DEBATING BUSH V. GORE, THE SUPREME COURT, AND AMERICAN DEMOCRACY 1, 54-55
(Ronald Dworkin ed., 2002) (claiming that judicial legitimacy requires sincerity and
transparency).
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transparency in judicial decisionmaking, requirements often linked with
the idea of candor. But, as I argue in Section I, sincerity and candor are
conceptually distinct. A duty of sincerity denotes a more limited
constraint on judicial behavior. If that constraint can be defended, then
perhaps an argument can be made for a broader duty of judicial candor.
My strategy is to begin with the narrower duty and move toward
consideration of the more demanding one.
To clarify and defend a principle of judicial sincerity, we need to
know what it means to be sincere. The purpose of Section I is to fix ideas
about the concept of sincerity. Once we have an idea of what sincerity
requires, we then need to ask why it is important that judges act
accordingly. In Section II, I begin the argument for judicial sincerity by
defending the claim that judges must justify their legal decisions. I then
argue, in Section III, that legal justifications are subject to a condition of
actual publicity. That is, judges must not only justify their decisions, they
must make the reasons for their decisions publicly available. In Section
IV, I argue that adherence to a principle of sincerity is necessary to
maintain the integrity of the public process by which legal justifications
are developed, challenged, and modified over time. Unless judges are
sincere, the grounds for their decisions cannot be scrutinized in the
public domain. And without such scrutiny, those subject to adjudication
cannot determine whether the reasons given to them are sound. Whether
citizens agree with the reasons given for a particular outcome, they must
have the opportunity to understand and evaluate those reasons. Section V
anticipates two kinds of objections to the principle of judicial sincerity.
Section VI discusses the limits of that principle.19
19
To be clear, this article does not consider whether, and to what extent, judges
conform to a principle of sincerity. Judges are sometimes accused of being
disingenuous. See, e.g., Idleman, supra note _, at 1314 n.20 (collecting citations);
Shapiro, Judges as Liars, supra note _, 155-156; Anthony D’Amato, Self-Regulation of
Judicial Misconduct Could be Mis-Regulation, 89 MICH. L. REV. 609, 619-623 (1990);
Laura E. Little, Hiding with Words: Obfuscation, Avoidance, and Federal Jurisdiction
Opinions, 46 UCLA L. Rev. 75, 82-83 (1998). Some of these criticisms may be wellmotivated and some not, but I make no accusations here. The question at issue is not
whether particular judges or opinions are candid or sincere but whether judges have a
duty to give sincere justifications for their decisions.
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I. CONCEPTS OF SINCERITY AND CANDOR
A. The Concept of Sincerity
The first step in defending a principle of judicial sincerity is to define
the concept of sincerity, which is often associated with the idea of
veracity or truth-telling. The reason for this association is that when
speakers are sincere, their statements are intended to convey the truth of
what they believe. Sincerity, on this view, requires consistency between
what people say, what they intend to say, and what they believe. The
conditions of consistency and intentionality are captured in the following
definition of what might be called sincerity as veracity:
(S1): if A says that p, A is sincere if and only if (i) A intends to say
that p and (ii) A believes that p. 20
According to this definition, if A says that p, her statement is either
sincere, insincere, or, if lacking intentionality, then neither sincere nor
insincere. These possible outcomes are represented in the Figure below:
believe that p
don’t believe that p
intend to
say that p
(1)
sincere
(2)
insincere
don’t intend
to say that p
(3)
neither sincere
nor insincere
(4)
neither sincere
nor insincere
Statements that fall within Box (1) are paradigm cases of sincere
statements because, as the saying goes, A says what she means and
20
In setting out (S1), I have simplified matters somewhat. It is probably more
accurate to say that A is sincere if, in saying and intending to say that p, A believes that
she believes that p. Suppose A is mistaken about what she “really” believes. She thinks
she believes p, but, perhaps subconsciously, she really believes ~ p. If she says that she
believes p, we would not say that she is insincere, even though she does not “really”
believe what she says. Conversely, if A thinks she believes p but says ~ p, she is
insincere, even if she “really” but unknowingly believes ~ p. In both examples, A’s
sincerity (or lack thereof) turns on whether she intentionally represents or misrepresents
what she thinks she believes. See Michael Ridge, Sincerity and Expressivism, in PHIL.
STUD. (forthcoming). In what follows, I shall leave aside this added level of complexity
by assuming that what people believe is the same as what they really believe. I do not
think anything here turns on that distinction.
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means what she says. Statements in Box (2) are insincere because A
intends to, and does, say something she does not believe. Notice,
however, that A may speak without being sincere or insincere. In Box
(4), A says what she does not believe without being insincere. Suppose A
believes that “Justice X is always right in her decisions” and that “Justice
Y is always wrong.” In the midst of a heated argument, A gets her X’s
and Y’s mixed up and accidentally says, “Justice X is always wrong.”
A’s statement is not sincere because A does not believe the content of her
statement. But neither is A’s statement insincere. The reason is that A did
not intend to misrepresent her belief that X is always right. A is neither
sincere nor insincere; she is simply mistaken in what she has said.
Similarly, just as a person can say something she does not believe
without being insincere, a person can say something that she does
believe without being sincere—a possibility captured in Box (3). The
reason is the same. If A says something she believes but without
intending to, her statement is neither sincere nor insincere. She has
simply misspoken. In what follows, I focus on statements in categories
(1) and (2). But the possibility of type (3) and (4) statements is
significant because it demonstrates that intentionality is central to
evaluating the sincerity of a speaker’s utterances. Sincerity and
insincerity are possible only if the speaker intends to say what he or she
actually says.
To prevent confusion, it is important to distinguish sincerity as
veracity, which is based on intentional consistency between belief and
utterance, from what has been called sincerity as single-mindedness,
which concerns whether a person genuinely holds some belief. Stuart
Hampshire describes this ideal of sincerity as “undividedness or
singleness of mind.” 21 A person is sincere only if he or she believes
something without any reservation, confusion, or internal conflict. On
this view, to determine whether one has a sincere belief requires
extensive introspection and continuous “self-watching” to guard against
inconsistencies in our thoughts, attitudes, and dispositions.22 As I have
argued elsewhere, some radical or skeptical versions of this idea of
sincerity are open to serious objections.23 But rather than rehearse those
21
Stuart Hampshire, Sincerity and Single-Mindedness, reprinted in FREEDOM OF
MIND AND OTHER ESSAYS 245 (1971).
22
Id. at 246.
23
See Micah Schwartzman, The Sincerity of Public Reason (manuscript on file with
author); see also Bok, Lying, supra note_, at 13 (arguing against skepticism about
truth-telling).
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here, I merely want to emphasize that sincerity as single-mindedness
turns on the authenticity of beliefs rather than on the intentional
consistency between beliefs and utterances. In the judicial context, a
focus on authenticity of belief may lead to questions about whether
judges are sufficiently introspective in forming their views about what
the law requires.24 But whatever it means for judges to have authentic or
sincere beliefs, the question remains whether judges have a duty to be
sincere or candid in stating those beliefs.
B. The Concept of Candor
So far I have concentrated on defining the concept of sincerity. This
may seem somewhat pedantic since most discussions about whether
judges should convey their “real” reasons are conducted in terms of
judicial candor. It is important, however, to distinguish between ideas of
sincerity and candor. As I argue below, candor is an ambiguous concept
that can be broken down into requirements of sincerity and disclosure.
These more basic concepts provide better tools for analyzing the moral
duties incumbent upon judges.
Although sincerity and candor are related as virtues of truth-telling,
they remain conceptually distinct. The difference between them is
roughly this: a person might make sincere statements, according to (S1),
without necessarily being candid. Even a speaker who means what she
says may not say everything necessary for her to be considered candid.
Whereas sincerity merely requires intentional consistency between belief
and utterance, candor demands a certain measure of affirmative public
disclosure on the part of the speaker. The kind of disclosure required by
the concept of candor is, however, a matter of some contention. Consider
the following example:
24
See Scott Altman, Beyond Candor, 89 MICH. L. REV. 296 (1990). Altman argues
that judges should not be introspective about how they make legal decisions because
their inaccurate beliefs about the legal process promote judicial restraint. Judges may
have self-fulfilling beliefs in the determinacy of legal rules. If they are disabused of
those beliefs through introspection, they will be less restrained in their decisionmaking
and produce worse decisions. Altman suggests that this argument is consistent with a
duty of judicial candor. Even if judges should not be introspective, they may still be
required to give the actual reasons for their decisions. Id. at 297. For criticism of
Altman’s argument, see Gail Heriot, Way Beyond Candor, 89 MICH. L. REV. 1945
(1991).
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Suppose judge J sits on a three-member court of appeals, along
with judges K and L. All three judges agree on the disposition of
the case before them, but they disagree about the reasons for their
collective decision. Judge J believes that the disposition is justified
by two independently sufficient legal reasons: R1 and R2. He
believes that each of these reasons standing alone would be an
adequate ground for reaching the same outcome. Now suppose J is
assigned to write the court’s opinion. He would prefer to decide the
case based on R1. Although he believes R2 is independently
sufficient, R1 extends the law in ways that J finds desirable.
Unfortunately, judges K and L disagree. They prefer R2, and they
reject R1 as legally incorrect. For the sake of expediency, or
perhaps collegiality, J decides to write a unanimous opinion based
on R2. He leaves out any mention of the reason he finds most
compelling.
It would be accurate to describe J’s opinion as sincere, as defined by
(S1). He believes that R2 is a sufficient reason to justify the outcome of
the case. It might be argued, however, that J is not candid, or at least not
fully so. He has not disclosed his preference for deciding the case on an
alternative ground. Since he believes that R1 is relevant to deciding the
case, and since he has omitted that information, he is not completely
forthcoming. For that reason, J’s opinion can be described as sincere but
not fully candid.
One might disagree with this description of J’s opinion by arguing
that a lack of candor requires either insincerity or an omission designed
to mislead others about what one believes. For example, David Shapiro
writes that “it is not deceptive for a majority to adopt a rationale that
does not go as far as some of its members are willing to go . . . The
problem of candor . . . arises only when the individual judge writes or
supports a statement he does not believe to be so.”25 Since a judge might
lead others to believe he supports a statement by failing to reveal
information, nondisclosure may create problems of candor on this view.
In the case described above, however, J has not said anything he does
not believe. And his omission does not mislead the public about the
reason for the court’s judgment. If candor requires only the lack of intent
to deceive, then J is acquitted of the charge of not being candid.
25
Shapiro, supra note 1, at 736.
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A problem with this objection, and perhaps also with my description
of the initial example, is that it trades on an ambiguity in the meaning of
the word candor. Sometimes candor is meant as a synonym for honesty.
This is how Shapiro uses the term. But it may also imply openness,
frankness, or the willingness to speak one’s mind.26 These different
meanings can be represented by two definitions of judicial candor, both
of which are represented in the literature. According to the first
definition, which tracks Shapiro’s view:
(C1): Judge J is candid if and only if J gives sufficient information
such that J does not knowingly mislead others about a legal
decision.27
This definition of candor requires judges to make whatever disclosures
they believe are necessary to prevent deception. A second and broader
definition captures the notion of candor as a form of openness or
transparency. On this view:
(C2): Judge J is candid if and only if J discloses all information
that J believes is relevant to a legal decision.28
The two definitions—one based on honesty, the other on transparency—
come apart in the example above. According to (C1), J is both sincere
and candid. He is sincere because he says only what he believes. He is
candid because his opinion did not mislead anyone about the basis of the
court’s judgment.29 Evaluated from the perspective of (C2), however, J
26
The OED includes five entries for the term “candor,” the last of which is most
relevant here. Candor is defined as: “Freedom from reserve in one’s statements;
openness, frankness, ingenuousness, outspokenness.” 1 OXFORD ENGLISH DICTIONARY
327 (1971).
27
See Shapiro, supra note 1, at 733.
28
See Idleman, supra note _, at 1316.
29
Note that even if we accept (C1), a person could still be sincere and not candid. If
J said only what he believes but not enough to prevent others from being misled, then
he would be sincere without being candid. Consider the following story: “St Athanasius
was rowing on a river when the persecutors came rowing in the opposite direction:
‘Where is the traitor Athanasius?’ ‘Not far away’, the Saint gaily replied, and rowed
past them unsuspected.” BERNARD WILLIAMS, TRUTH AND TRUTHFULNESS 102 (2004);
see also Alasdair MacIntyre, Truthfulness, Lies, and Moral Philosophers: What Can
We Learn from Mill and Kant?, in 16 Tanner Lectures on Human Values 336 (1995).
The Saint is sincere, at least according to (S1), because he has not asserted anything he
believes is false. But he lacks candor, on both (C1) and (C2), because he knowingly
misleads others by omitting relevant information.
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is sincere but not candid. He is honest but he does not disclose
everything relevant to him about the case. He is not open or frank about
the various reasons for his agreement with the court’s opinion. If candor
requires transparency in decisionmaking, then J has not been candid. Of
course, this does not mean that J has acted inappropriately. It may be that
he has no obligation to reveal all of his reasons. Perhaps, as (C1)
suggests, he is only obligated to reveal what he believes is enough
information to prevent others from being misled.
It may be that our ordinary intuitions about the idea of candor are not
sufficiently strong to decide between the definitions proposed in (C1)
and (C2). Perhaps the concept of candor is being asked to do too much
work here in sorting our reactions to a rather specialized situation
concerning judicial decisionmaking.30 But once the ambiguity in the
concept is understood, the problem of definition becomes less pressing.
What matters is that judges are to be evaluated for their sincerity and for
their willingness to disclose certain information. Putting things in terms
of sincerity and disclosure allows us to formulate more precise sorts of
questions. Rather than asking whether judges must be candid, we can
ask, first, what sorts of disclosures judges must make about their cases,
and, second, whether their disclosures must be sincere. To answer these
questions, we need to know more about the function of judges in the
adjudicative process. We do not, however, need a complete theory of the
judicial role or a full account of the nature of adjudication. As I argue
below, a partial statement of the necessary conditions of adjudication—
one which avoids central controversies about its forms and limits—is
sufficient to ground a principle of judicial sincerity.
II. THE VALUE OF LEGAL JUSTIFICATION
Arguments for and against judicial candor usually begin with an
account of what role judges play in society. This may seem like a
perilous place to start an argument about the ethical duties of judges.
After all, there is so much disagreement about the nature and goals of
adjudication that any argument based on a theory of the judicial role is
bound to be controversial. Those who have different views of what it
means to be a judge may reject the implications of arguments based on
competing accounts. Indeed, the possibility of reasonable disagreement
about theories of adjudication raises an important question about how to
30
I am grateful to Charles Fischette for helping me to see this point more clearly.
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justify principles of judicial ethics, including those of sincerity and
candor. Given deeply entrenched and persistent disputes about how
judges should decide cases, or, more generally, about the purposes of
judging,31 how can we expect agreement on the role-based obligations of
judges? The answer, I think, is that such duties can be derived from
elements of a general concept of adjudication. Many long-standing
disputes about the proper functions of the judiciary can be avoided in this
way.
A. The Principle of Legal Justification
It would be desirable if claims about judicial ethics, such as whether
judges ought to be sincere, did not depend on controversial theories of
adjudication. Otherwise, proponents of different theories would have to
provide independent justifications for the professional obligations of
judges. Instead of developing a unified understanding of what duties
judges must respect, there would be a fragmentation of views based on
conflicting claims about the proper aims and methods judicial
decisionmaking. One way to avoid this result is by appealing to a general
concept of adjudication that is robust with regard to more specific
conceptions of it.32 Following Gerald Gaus, we can say that “theory T1 is
robust vis-à-vis T2 to the extent that changes in T2—including the total
rejection of T2 in favor of some competing theory T2′—do not weaken
the justification of T1.”33 Some theories will be robust with regard to
others because they are related as concepts and conceptions. For
example, if the concept of justice is that “all equals should be treated
equally,” it will be robust in relation to various theories of equality. Such
theories will specify what justice means, but they will not undermine the
justification of that concept of justice. Similarly, we can identify a
concept of adjudication, or at least part of that concept, that is robust visà-vis a diversity of competing conceptions of adjudication. That concept
may then serve as a unified basis for claims about the role obligations of
judges.
31
See Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and
the Duty to Decide, 94 GEO. L.J. 121, 139-55 (2005) (surveying competing theories of
adjudication).
32
See JOHN RAWLS, A THEORY OF JUSTICE 5-6 (197) (distinguishing between
concepts and conceptions); H. L. A. HART, THE CONCEPT OF LAW 159 (2d ed. 1994)
(same).
33
GERALD GAUS, JUSTIFICATORY LIBERALISM: AN ESSAY ON EPISTEMOLOGY AND
POLITICAL THEORY 6 (1996).
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A full account of a general concept of adjudication would describe
necessary and sufficient conditions for legitimate judicial
decisionmaking.34 Here, I want to focus on only one necessary condition,
which can be called the principle of legal justification. According to this
principle:
(LJ): adjudication is legitimate only if judges have sufficient
reasons to justify their legal decisions.35
This principle needs to be clarified in a number of important ways. It
also needs to be justified. Some reason, or set of reasons, must be given
to show that the principle establishes a necessary condition of legitimate
adjudication.
Before considering how the principle of legal justification might be
justified, however, it is important to have a better sense of what it does
and does not require:
First, and perhaps most important, the principle does not specify what
counts as a reason. A reason can be defined in mundane terms as any
consideration that supports a decision.36 This obviously raises the
question of what kinds of things count as supportive considerations. But
a concept of adjudication can leave this question open. By developing
answers to it, we formulate different conceptions of adjudication.
Second, the principle does not limit judges to legal reasons. Even if
criteria of legality remain unspecified, this added constraint on the
principle would unnecessarily exclude theories of adjudication that
permit judges discretion to invoke non-legal reasons where legal sources
are thought to be indeterminate.37
34
See, e.g., Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV.
353, 364 (1978); HENRY HART & ALBERT SACKS, THE LEGAL PROCESS: BASIC
PROBLEMS IN THE MAKING AND APPLICATION OF LAW 664-669 (tent. ed. 1958).
35
This principle obviously bears some resemblance to the idea of “reasoned
elaboration” in the theory of legal process developed by Fuller, Hart and Sacks,
Wechsler, and others. See generally G. Edward White, The Evolution of Reasoned
Elaboration: Jurisprudential Criticism and Social Change, 59 VA. L. REV. 279 (1973);
NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE ch. 4 (1995).
36
See Joshua Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY 194
(Jon Elster ed., 1998).
37
See, e.g., Hart, Postscript, in supra note _, at 273. The discretion to make law
does not relieve judges of the duty to justify their decisions. According to Hart,
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Third, whatever reasons judges appeal to, those reasons must be
sufficient to justify their decisions. Judges are not required to have the
best possible reasons, but the considerations they appeal to must be
capable of establishing that their decision is correct.38 In some cases,
judges may have more than one sufficient reason for their decision. A
given holding or ruling may be over-determined by independent reasons
each of which is sufficient to justify the outcome in question. Under
these conditions the principle is easily satisfied. But when judges cannot
muster considerations that are powerful enough to support their
decisions, they fail to meet the demand for justification.
Fourth and finally, to say that judges must have reasons means that
they must at least be able to offer considerations in support of their
decisions. This principle does not require that judges make their reasons
public. An additional step in the argument (considered below) is required
to reach the conclusion that reasons must be given publicly. But even if
judges do not state their reasons, the principle requires that judges
possess them. For example, trial judges who make rulings on evidentiary
objections may not state the reasons for their decisions.39 They may
simply tell the parties that their objections are sustained or overruled. But
such decisions must be justifiable. A judge must not rule on objections
arbitrarily. To act without justification is to violate a necessary condition
of legitimate adjudication.
The principle of legal justification is robust in relation to all but the
most radical theories of adjudication. Because it leaves open what counts
as a “good” reason in the context of judicial decisionmaking, it is
compatible with a wide diversity of theories. The principle could be
endorsed by formalists, legal realists, textualists, purposivists, process
theorists, pragmatists and so on. Every normative theory of adjudication
specifies what kinds of considerations matter when judges make
“[T]here will be points where the existing law fails to dictate any decision as the correct
one, and to decide cases where this is so the judge must exercise his law-making
powers. But he must not do this arbitrarily: that is he must always have some general
reasons justifying his decision . . . But if he satisfies these conditions he is entitled to
follow standards or reasons for decision which are not dictated by law and may differ
from those followed by other judges faced with similar hard cases.” Id.
38
See Gerald Gaus, The Rational, the Reasonable, and Justification, 3 J. POL. PHIL.
232, 252-254 (1995) (defending sufficiency as appropriate standard for political
justification).
39
See Schauer, supra note _, at 637.
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decisions. Even theories that rebel against the idea of “Reason,” in some
grand sense of that word, can accept that judges must be able to explain
why their decisions are legitimate. Judges may have reasons that are
acceptable only to those with idiosyncratic views about what counts as a
reason, but nothing in the principle of legal justification prevents a
theory of adjudication from offering an account of “reasons” that is
relative to particular, or even peculiar, moral or conventional sources.
There may be good reason to reject theories of adjudication that
recommend appeals to considerations that are not widely shared. But that
is a criterion for selecting among conceptions of adjudication that need
not be incorporated as a necessary condition of the general concept.
Although the principle of legal justification is compatible with diverse
conceptions of adjudication, it is not entirely empty. The principle
requires that judges evaluate the claims made before them and, at the
very least, have a considered view about how those claims should be
resolved. The demand for justification places judges under a duty to
articulate, even if only to themselves, grounds for their decisions. It
requires them to refrain from acting arbitrarily, at least from the point of
view of a given theory of adjudication.
B. Legal Justification and Legitimacy
With these clarifications in place, we can now ask why judges ought
to conform with the principle of legal justification. Even if the principle
is accepted as a necessary condition of legitimate adjudication, it is
important to understand why judges must adhere to it. As before, we
should look for reasons that can command wide assent. No justification
will be entirely without controversy, but some arguments will be more
robust than others with regard to competing theories of the judicial role.
Here, then, are four reasons for the principle of legal justification:
First, some parties voluntarily submit their grievances to public
adjudication for the purpose of obtaining impartial review. The parties to
a case or controversy present reasoned arguments for their claims on the
expectation that judges will be responsive to the strength of the reasons
provided. Thus, a traditional argument for the principle of legal
justification is that litigants are entitled to a reasoned assessment of their
claims.40 If for whatever reason the parties preferred an arbitrary
40
Idleman, supra note _, at 1357 n.154 (collecting citations supporting this
argument for reasoned decisions).
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solution, adjudication would not be necessary. They could simply select
a random decision procedure to resolve their dispute.41 When parties
offer reasons for their claims in the form of legal arguments, however,
they can reasonably expect that judges will weigh those reasons and
provide a decision based on an evaluation of them.42 Decisions reached
without regard to reasons are not responsive to the underlying conflict
between the parties.43 The parties can therefore complain that the
purpose of the adjudicative process has been corrupted or ignored. The
reasons they presented were not given proper consideration in resolving
the conflict between them. The winning party may be pleased with the
outcome. But even the winner may realize that the decision was reached
incorrectly, or, worse yet, illegitimately.
Second, the parties to adjudication will often not have consented to
adjudication in any meaningful way. The involuntariness of their
participation does not, however, diminish the requirement that judges
justify their decisions. On the contrary, the fact that litigants have no
choice but to submit to adjudication greatly strengthens the demand for
justification. As unwilling participants, they have even more reason to
complain when they are treated arbitrarily.44 When the parties have not
chosen to settle their dispute by adjudication, the imposition of a
decision without reason is a form of oppression. This claim may seem
overstated. In the legal domain, however, the orders and judgments that
follow from adjudicative proceedings are backed by the coercive power
of the state. The threat of brute force conveyed by judicial decisions is
perhaps most apparent in the domain of criminal law.45 But it is present
41
See NEIL DUXBURY, RANDOM JUSTICE ch. 5 (1999) (discussing use of lotteries in
legal decision-making).
42
Interestingly, as a judge on the Court of Appeals for the DC Circuit, Ruth Bader
Ginsburg reported that the “District of Columbia rule promises a decision with no
waiting time if the parties stipulate that they will forgo an opinion. In my nearly five
years on the court, not a single litigant has ever invoked the ‘prompt decision but no
opinion’ prescription. The parties to an appeal, particularly the losers, want to know the
reason why.” See Ruth Bader Ginsburg, Obligation to Reason Why, 37 U. FLA. L. REV.
205, 221 (1985).
43
See Fuller, supra note _, at 367; Melvin Aron Eisenberg, Participation,
Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92 HARV. L.
REV. 410, 412-14 (1978) (discussing the norm of strong responsiveness).
44
See David Lyons, Justification and Judicial Responsibility, 72 CAL. L. R. 178,
193-94 (1984).
45
See Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in
Criminal Law, reprinted in HARMFUL THOUGHTS, supra note _, at 74 (“[T]he law does
not just evaluate behavior, but typically uses its evaluations to justify the killing,
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all the same on every occasion in which judges invoke their legal
authority.46
Third, in many cases, judges make decisions that reach beyond
disputes between particular litigants. In common law systems, cases or
controversies arising from the same or similar circumstances are often
governed by past precedent. For that reason, the demand for justification
can be issued not only by present litigants but also by any future parties
whose claims will be controlled by a court’s prior decisions.
Furthermore, as proponents of structural litigation have emphasized, it is
a mistake to conceive of adjudication solely as a mechanism for
resolving disputes between individuals with private ends.47 The judicial
process is used, sometime to great effect, for the purpose of challenging
large-scale social and political institutions. In such cases, judges are
called upon to elucidate and apply public norms to correct systemic
injustices. Indeed, if courts find breaches of constitutional values, they
may exercise their equitable powers to order remedies with far reaching
consequences for the basic structure of society.48 By altering the patterns
of opportunities and entitlements available to people, courts may have
profound effects on life chances. Those influenced by such decisions
may be thought to have a strong interest in demanding justifications for
them.
Fourth, and perhaps most fundamentally, the principle of legal
justification is based on the idea that legal and political authorities act
legitimately only if they provide reasons that those subject to them can,
in principle, understand and accept.49 This principle of political
maiming, beating, or locking up of the evaluated individual. The suppression of this allimportant fact leads to a certain understatement of the moral awesomeness of the legal
decision and to an unduly placid and benign picture of the law.”).
46
See Grant Lamond, The Coerciveness of Law, 20 OXFORD J. LEGAL STUD. 39
(2000) (discussing numerous ways in which law is coercive).
47
See Owen M. Fiss, The Supreme Court Term, 1978 Term—Foreword: The Forms
of Justice, 93 HARV. L. REV. 1 (1979); Abram Chayes, The Role of the Judge in Public
Law Litigation, 89 HARV. L. REV. 1281 (1976). Whether Fuller or anyone else actually
made this mistake is a separate question. See Robert G. Bone, Lon Fuller’s Theory of
Adjudication and the False Dichotomy Between Dispute Resolution and Public Law
Models of Litigation, 75 B. U. L. Rev. 1273, 1301-20 (1995).
48
See Owen M. Fiss, The Social and Political Foundations of Adjudication,
reprinted in THE LAW AS IT COULD BE 48, 52-55 (2003).
49
Different interpretations of this idea have been defended at length in recent years.
See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 137, 217 (1996); THOMAS NAGEL,
EQUALITY AND IMPARTIALITY ch. 4 (1995); STEPHEN MACEDO, LIBERAL VIRTUES:
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legitimacy permits a range of argument about what kinds of reasons
might be accepted for the purpose of justifying the exercise of political
power. But however we specify those reasons, adherence to the
underlying principle expresses a commitment to treating citizens as
capable of understanding and responding to the reasons that justify the
rules by which they are governed. When legal and political officials lack
sufficient reasons for their decisions, they fail to respect the rational
capacities of those subject to their authority.50 They show disrespect for
the fundamental interest that citizens have in being governed according
to reasons and principles to which they can give their considered assent.
This interest, which resonates with the idea that government should be
based on consent, is at the core of liberal democratic conceptions of
political legitimacy. Indeed, a basic commitment of liberal political
thought is, as Jeremy Waldron has written, that “intelligible justifications
in social and political life must be available in principle for everyone . . .
the basis of social obligation must be made out to each individual, for
once the mantle of mystery has been lifted, everybody is going to want
an answer.”51 Of course, not everyone will be happy with the all of the
answers all of the time. But the fact of reasonable disagreement does not
excuse political officials, including judges, from their responsibility to
justify their decisions.52 The losing party may often be dissatisfied with
the reasons for judgment. That does not, however, make the obligation to
produce a reasoned outcome any less significant.53 The exercise of legal
authority must be justified especially to those whose interests are
adversely affected. As rational and reasonable agents, they are owed a
justification for the way they are treated under the law.
CITIZENSHIP, VIRTUE AND COMMUNITY IN LIBERAL CONSTITUTIONALISM ch. 2 (1991);
GAUS, JUSTIFICATORY LIBERALISM, supra note _, at 165; GEORGE KLOSKO,
DEMOCRATIC PROCEDURES AND LIBERAL CONSENSUS chs. 1-2 (2000).
50
See CHARLES LARMORE, THE MORALS OF MODERNITY 137 (1996) (“For the
distinctive feature of persons is that they are beings capable of thinking and acting on
the basis of reasons. If we try to bring about conformity to a political principle simply
by threat, we will be treating people solely as means, as objects of coercion. We will
not also be treating them as ends, engaging directly their distinctive capacity as
persons.”).
51
Jeremy Waldron, Theoretical Foundations of Liberalism, reprinted in LIBERAL
RIGHTS 44 (1993) (original emphasis).
52
See RAWLS, POLITICAL LIBERALISM, supra note _, at 55-56.
53
See MARTIN P. GOLDING, LEGAL REASONING 8 (1984) (“Reasoned decisions . . .
can be viewed as attempts at rational persuasion; and by means of such decisions,
losing parties may be brought to accept the result as a legitimate exercise of
authority.”).
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III. THE VALUE OF PUBLIC JUSTIFICATION
The principle of legal justification requires that judges have sufficient
reasons to justify their legal decisions. It does not place judges under a
duty to make their reasons public. The argument for the value of legal
justification, however, supports taking this additional step. Not only must
judges have reasons, they must give their reasons publicly. Otherwise,
the parties to a case, and all others whose interests might be affected by
its outcome, cannot know why the law has been applied in one way
rather than another. Unless reasons are publicized, there can be no
opportunity to evaluate, scrutinize, and possibly assent to the reasons for
a decision. If the parties are to be treated with due respect, as people
capable of responding to reasons, then judges must conform with a
principle of legal justification suitably modified to take into
consideration the demand for publicity. In this section, I describe that
principle and show how it promotes values associated with reasongiving.
A. The Publicity Condition
The principle of legal justification can be modified by incorporating
into it an independent principle of publicity, or what is sometimes called
a “publicity condition.”54 That condition can, in turn, be formulated in
various ways.55 Elsewhere, I have suggested the outline of a general
publicity condition, according to which:
(GPC): X is acceptable only if it is made public to P.
A conception of this condition is specified by filling in the subject,
audience, and type of publicity.56 First, the subject of publicity,
represented by X, is whatever must be made public. Since the focus here
54
See Rawls, THEORY OF JUSTICE, supra note _, at 133, 453-54 (discussing
publicity condition); JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 120-22
(Erin Kelly ed., 2001); John Rawls, Kantian Constructivism in Moral Theory, in
COLLECTED PAPERS 324-25 (Samuel Freeman ed., 1999).
55
See Axel Gosseries, Publicity, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY
(Edward N. Zalta ed., 2005), at http://plato.stanford.edu/archives/spr2005/entries/
publicity; David Luban, The Publicity Principle, in THE THEORY OF INSTITUTIONAL
DESIGN 154 (Robert E. Goodin ed., 1996); AMY GUTMANN AND DENNIS THOMPSON,
DEMOCRACY AND DISAGREEMENT ch. 3 (1996).
56
See [Schwartzman, supra n_].
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is on sufficient reasons for judicial decisions, we can let reason R be the
subject of a properly stated publicity condition.
Second, the audience of publicity, represented by P in the general
condition, defines those to whom R must be made public. Since we are
concerned with justifying legal decisions, the relevant audience ought to
include at least those whose interests are implicated by the application of
R.57 A more expansive interpretation of the publicity condition might
also include within its scope anyone over whom the state exercises its
authority. Moreover, in a democratic society, where the subjects of
authority are also its source, the scope of publicity is extended to the
people at large. The public audience encompasses the entire polity. In
principle, no one is excluded from knowing about R.
Third, the type of publicity describes the sense in which R must be
made public. There are two main types of publicity: hypothetical and
actual. R satisfies a test of hypothetical publicity when it can be made
public without leading to its own rejection. The most well-known
hypothetical publicity condition is Kant’s “transcendental formula of
public right,” according to which: “All actions relating to the rights of
others are wrong if their maxim is incompatible with publicity.”58 As
Kant explained, a necessary but not sufficient condition for moral action
is that a person act from a maxim, or principle,59 that could be made
public without making the relevant action self-defeating.60 For example,
a judge who decides cases on the principle “criminal defendants always
lose” could not make this principle public without defeating the purpose
of issuing guilty verdicts in all criminal cases. Once revealed, the judge’s
principle would create such resistance that he or she could no longer act
57
See Golding, supra note _, at 8 (“A judicial justification is offered in order to
justify to someone the decision or conclusion; a justification is directed to an audience.
Perhaps the first person to whom the justification is directed is the losing litigant; and to
this may be added all other people whose interests might be adversely affected by the
result.”).
58
Immanuel Kant, Toward Perpetual Peace, in PRACTICAL PHILOSOPHY 347 (Mary
J. Gregor ed., Cambridge University Press 1996).
59
See Luban, supra note _, at 168 (quoting Kant’s definition of a “maxim” as “the
subjective principle of volition”).
60
Kant, supra note _, at 347 (“For a maxim that I cannot divulge without thereby
defeating my own purpose, one that absolutely must be kept secret if it is to succeed
and that I cannot publicly acknowledge without unavoidably arousing everyone’s
opposition to my project, can derive this necessary and universal, hence a priori
foreseeable, resistance of everyone to me only from the injustice with which it threatens
everyone.”).
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upon it.61 This example is an easy case. More difficult ones might be
developed to press the meaning of “incompatibility” in Kant’s
formulation. Just how much external opposition would one have to
imagine to conclude that a principle would be undermined by making it
public? This question raises serious, if not insurmountable, difficulties
for specifying the content of a hypothetical publicity condition.62
The problem of determining the conditions of self-defeat does not,
however, present any difficulty for a test of actual publicity. R meets a
condition of actual publicity only if it is, in fact, made known to the
relevant public. This test avoids the problems of hypothetical publicity
because it does not turn on the anticipated reaction of an imagined
audience. But an actual publicity condition has its own ambiguities.
What exactly does it mean to say that R is “made known” to the public?
This phrase is compatible with different levels of public knowledge. A
weak form of actual publicity requires only the public availability of R.
For example, when courts publish their opinions, they are made available
for public consumption. The reasons for decisions are “made known” in
the sense that anyone who cares to learn about them has the opportunity
to do so. Stronger forms of actual publicity are possible. The state might
have a duty to promote public awareness or even, in some circumstances,
to ensure that citizens acquire knowledge of certain subjects. The level of
actual publicity required will depend on the subject of publicity and on
the importance of people knowing about it.
Given these observations, we can now state a version of the principle
of legal justification that incorporates the main elements of a publicity
condition. Call this the principle of public legal justification:
(PLJ): adjudication is legitimate only if (i) judge J has sufficient
reason, R, to justify legal decision D, and (ii) makes R known to
those governed by D.
This principle requires the public justification of legal decisions to those
over whom the state claims authority. Interpreted to include a weak form
61
See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 205 (1985)
(“I suggest the following practical, though only partial, test for distinguishing a
principled from a result-oriented decision: a decision is principled if and only if the
ground of the decision can be stated truthfully in a form the judge could publicly avow
without inviting virtually universal condemnation by professional opinion.”).
62
See Luban, supra note _, at 169-76; Gosseries, supra note _, at sec. 1.1.
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of actual publicity, it places judges under a duty to make publicly
available the reasons that they believe justify their decisions. It is not
enough that a decision meet a test of hypothetical publicity. Although
judges may use a hypothetical test to evaluate the sufficiency of their
reasons, they must disclose what they believe are adequate grounds to
justify their exercise of legal authority.
B. The Value(s) of Publicity
The actual publicity condition incorporated into the principle stated
above is justified because adhering to it (i) demonstrates respect for the
rational capacities of citizens, and (ii) creates conditions for improving
the quality of judicial decisionmaking.63 These two justifications are
intimately connected. As we saw earlier, the first requires that judges
treat citizens with respect by articulating justifications for the use of
coercive power. But the reasons that judges have developed may not be
adequate to support their judgments. As Hart put it, judicial decisions
may be final, but they are not infallible.64 Even if judges arrive at the
correct disposition of a case, they may make mistakes in the reasoning
that led them, however fortuitously, to the proper conclusion. By giving
their reasons, judges make it possible for others to test the validity and
soundness of their claims. This is an essential part of the process of
justifying the exercise of authority. Those subject to judicial power are
owed reasons that they can, in principle, understand and accept. If the
reasons given to them are inadequate, then the demand for justification
has not been met. The only way to fulfill that demand is to show that the
reasons given can withstand public criticism. Moreover, open
deliberation about proffered justifications may improve judicial
reasoning, which, in turn, enables judges to do a better of job of
satisfying the requirement of giving sufficient reasons for their decisions.
In short, what we might call the epistemic argument for publicity
63
There are, of course, other reasons for valuing actual publicity. In addition to
promoting the legitimacy and quality of judicial decisionmaking, written opinions
provide notice, increase predictability, and assign accountability and responsibility to
individual judges. See William M. Richman and William L. Reynolds, Elitism,
Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81
CORNELL L. REV. 273, 282-84 (1996) (discussing the functions of written opinions and
collecting citations). I focus on the two arguments presented in the text above because
they form part of a non-consequentialist argument for judicial sincerity. These
arguments may well be fully consistent with the outcomes of various consequentialist
arguments for publicity.
64
Hart, supra note _, at 144.
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promotes the value of legitimacy, which requires giving citizens reasons
for the exercise of coercive power.
Consider, again, the argument that actual publicity is required by the
value of treating citizens as reasonable and rational actors. I argued
above that judges have a duty, based on an ideal of political legitimacy,
to give those governed by their decisions sufficient reasons for them. A
judge who attempts to fulfill this duty will formulate reasons that she
thinks adequately support her legal judgment. Notice, however, that even
a conscientious judge can only give reasons that she believes are
sufficient. She cannot step outside herself to determine according to
some objective standard whether her reasons are actually sufficient.
Unless she claims infallibility, all that she can say is that she has acted
diligently and with good faith in providing a reasonable justification. A
judge who acts accordingly may be praiseworthy, but that does not mean
her reasoning is sound. When a judge attempts unsuccessfully to satisfy
the principle of legal justification—that is, when she seeks sufficient
reasons but fails, perhaps unknowingly, to provide them—the judge has
not met the burden of justifying her exercise of authority. She has not
provided those governed by her decision with good reasons for obeying
it. Nevertheless, she has given them an opportunity to evaluate her
arguments and, if necessary, to challenge or appeal them. In making her
reasons publicly available, the judge acknowledges the force of reasongiving and demonstrates respect for those to whom justifications are
owed.
A second, and related, reason for valuing actual publicity is that, even
in its weak form, it establishes conditions for deliberation that are
conducive to improving judicial decisionmaking. The first step in the
argument for this claim is relatively straightforward. Unless judges make
their reasons public, it is difficult, if not impossible, to scrutinize them.
Litigants, citizens and scholars may guess at why judges have made
certain decisions. They may impute reasons where none are given. But
while this may sometimes be necessary, it is not an adequate substitute
for evaluating the actual grounds of a decision, which may not have
anything to do with the speculations and projections offered to explain or
justify that decision. By publicizing their reasons, judges enable others to
engage in direct deliberation about them.
The second step in the argument for the epistemic value of actual
publicity is the claim that public deliberation improves the quality of
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decisionmaking. There are four reasons for anticipating this effect. First,
and foremost, judges who make their reasons public have greater
incentives to take seriously the issues that confront them in a given case
or controversy.65 To fend off the prospect of criticism, which may
originate from within the court or outside it, they are likely to invest
more time and energy in understanding and applying the relevant law.
The process of writing may also lead judges to clarify their views, sort
through possible mistakes in legal reasoning, and make more explicit
their underlying commitments so as to prevent others from
misinterpreting them.66 Second, although public deliberation may not
produce anything remotely resembling a rational consensus, it can
nevertheless work to correct obvious displays of mistaken reasoning or
prejudice.67 If the anticipation of opposition is not sufficient to filter out
the worst forms of argumentation, the disclosure of unjust or badly
argued decisions at least makes it possible to focus critical attention in
the right direction. Third, discussion of the reasons given by judges can
help to ameliorate what Alvin Goldman has called an “epistemological
division of labor.”68 This condition exists when there are widespread
asymmetries of private information, as will often be the case with judges
who have limited resources for researching the matters presented to
them. For the most part, they must rely on the facts and arguments
offered by the parties to litigation. When judges disclose the reasons for
their decisions, they may prompt others to share information relevant to
65
See Richman and Reynolds, supra note _, at 284 (“It is not difficult to understand
why unpublished opinions are dreadful in quality. The primary cause lies in the absence
of accountability and responsibility; their absence breeds sloth and indifference.
Moreover, a judge’s mastery of the case is reduced when she does not publish . . .
Writing out an opinion helps the author to understand the problem, to see things she
otherwise would not see.”); William L. Reynolds and William M. Richman, An
Evaluation of Limited Publication in the United States Courts of Appeals: The Price of
Reform, 48 U. CHI. L. REV. 573 (1981) (evaluating the quality of unpublished
opinions); Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in
the U.S. Courts, 56 STAN. L. REV. 1435, 1485 (2004) (arguing against unpublished
opinions in part because “[d]epublication strips the judicial process of the quality of
reasoning that the discipline of opinion writing should, at its best, produce.”).
66
See Ruth Bader Ginsburg, Remarks on Writing Separately, 65 WASH. L. REV.
133, 139 (1990); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric:
Judicial Writings, 62 U. CHI. L. REV. 1371, 1375 (1995); cf. Idleman, supra note _, at
1350 n.131 (collecting citations, but criticizing the underlying argument).
67
See Thomas Christiano, The Significance of Public Deliberation, in
DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 243, 249 (James
Bohman and William Rehg eds., 1999).
68
Alvin Goldman, Argumentation and Social Epistemology, 91 J. PHIL. 27, 30
(1994).
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the case. The evening out of privately held information increases the
dissemination of knowledge, reduces cognitive bias,69 and diminishes the
risks of cascading effects.70 Fourth, arguments developed in response to
the disclosure of the reasons for judicial decisions may lead to direct and
indirect improvements in the law. Criticisms of stated justifications may
be taken up on appeal or in subsequent litigation. Alternatively, they may
find their way into the law gradually through later developments. As
with competing interpretations of the law presented in dissenting
opinions, such arguments may await more sympathetic audiences at
some point in the future.71
To summarize the argument so far, actual publicity is an important, if
not a necessary, aspect of adjudication because it promotes two
interrelated values. The first is the value of legitimacy. Judges must
justify the ways in which they apply the power of the state. They must
not only have reasons for their decisions, but they must announce those
reasons publicly so that those governed by them can come to an
understanding of, and perhaps even a reconciliation with, the workings
of the law. If judges were infallible, then public justification might not be
necessary. But that is obviously not the case. Judges are subject to severe
constraints on the information available to them. And even if they had
access to all relevant information, they could not possibly process all of
it. Because of the pervasive condition of “epistemic scarcity,”72 they
must make their reasons available for public scrutiny. They cannot know
that they have adequately justified their decisions unless they provide
others with the opportunity to challenge and criticize their reasoning.
Public deliberation about the justifications of judicial decisions may not
yield consensus. It may, however, improve the quality of legal
decisionmaking. In this way, the epistemic value of actual publicity
promotes the value of legitimacy. We can be confident that legal
authority is properly exercised only if those who wield it give
justifications for their decisions.
69
See Gaus, JUSTIFICATORY LIBERALISM, supra note _, at 148; James D. Fearon,
Deliberation as Discussion, in DELIBERATIVE DEMOCRACY 44, 49-52 (Jon Elster ed.,
1998).
70
See CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 59-60, 168 (2003).
71
See William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 43031 (1986).
72
Gaus, JUSTIFICATORY LIBERALISM, supra note _, at 155.
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IV. THE PRINCIPLE OF JUDICIAL SINCERITY
The main elements of the argument for a principle of judicial sincerity
are now in place. We have seen that judges have a duty to conform with
a principle of public legal justification. They must have sufficient
reasons for their decisions and they must give those reasons in public.
Judges who conform with this principle may also seem to satisfy the
definition of sincerity as veracity. Recall that a person is sincere if and
only if she says what she believes and intends to say it. A judge who
believes that reason R is sufficient to justify her decision, and who states
R as her public justification, is, by definition, sincere. It looks like the
principle of public legal justification is a principle of judicial sincerity.
This raises two questions. First, if sincerity is built into the principle of
public legal justification, how did it get there and what role is it playing
in support of that principle? And second, if the principle of public legal
justification just is the principle of judicial sincerity, is this the principle
that we have been looking for? Does it match up with or help to explain
conventional wisdom about the duty of judicial candor? And if the
principle is critical of the conventional wisdom, or otherwise revisionist,
is it adequately supported? This second set of questions will bring us
back to the distinction between candor as honesty and candor as full
disclosure. As promised, I shall argue that while the former is required,
the argument for judicial sincerity also provides support for a more
expansive duty of full disclosure.
A. Sincerity, Publicity, and Justification
The principle of public legal justification appears to have a built-in
sincerity requirement. Judges must give sufficient reasons for their legal
decisions. When this demand is satisfied, there seems to be no space for
insincerity. Since the value of sincerity was not explicitly defended as
part of the argument presented above, this may come as something of a
surprise. Why is sincerity a necessary feature of public legal
justification? This question can lead to the following sort of objection.
As I noted earlier, judges can only offer what they believe are sufficient
reasons. Their perspectives are subjective in the sense that, while they
may think that their reasons provide sound justifications, that may not
necessarily be the case.73 A judge who sincerely believes that reason R
justifies disposition D may have drawn the wrong inference from R or
73
Cf. Goldman, supra note _, at 34 (discussing subjective and objective duties of
argumentation).
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may have missed some competing reason that makes the inference from
R to D defeasible. The fact that a judge sincerely believes something
does not make that belief correct. Furthermore, the argument goes, if
what we are really worried about is justifying legal decisions, then
sincerity is a red herring. As Martin Golding writes, “[I]t would be
unfortunate if . . . the judge did not sincerely hold the reasons he
explicitly gives. But in an important respect this fact, whenever it is a
fact, is irrelevant to the justifiability of the decisions. The justifiability of
the decision depends on how well the decision is reasoned.”74 The
objection, then, is that sincerity is beside the point. The principle of legal
justification requires that judges give sufficient reasons. It does not
matter whether they really believe them. If this objection holds, then the
principle of public legal justification is not a principle of judicial
sincerity. Since judges may give reasons that are sufficient without
believing them, sincerity is not required for the purpose of providing
legal justification.
This objection shows that there is indeed logical space between the
principle of public legal justification (PLJ) and a principle of judicial
sincerity (PJS). We can see this by placing the two principles side by
side. Compare:
(PLJ): adjudication is legitimate only if (i) judge J has sufficient
reason, R, to justify legal decision D, and (ii) makes R known to
those governed by D.
with
(PJS): adjudication is legitimate only if (i) J sincerely believes that
R is sufficient to justify D, and (ii) makes R known to those
governed by D.
These two principles do not collapse into each other for two reasons.
First, if a judge can be said to have a sufficient reason without believing
it to be sufficient, then a judge can give that reason without being
sincere. Since a judge can fulfill (PLJ) without believing the reasons that
the judge makes publicly available, PLJ is not necessarily a principle of
judicial sincerity. Second, and perhaps more important, a judge can
satisfy PJS without meeting the first part of PLJ. This is because, as we
74
Golding, supra note _, at 8.
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have already seen, a judge may believe that a reason is sufficient even if,
in fact, it is not. The principle of judicial sincerity is compatible with a
failure to give sufficient reasons. Thus, there are at least two ways the
principles can come apart. A judge may lack sincerity but nevertheless
succeed in justifying a decision, or a judge may be sincere but fail to
provide adequate justification.
Although the two principles are distinct, the value of providing
citizens with sufficient reasons strongly supports a principle of judicial
sincerity. The reasons for adopting (PLJ) are also reasons to accept
(PJS). The best way for judges to approximate the demand for
justification is by satisfying the principle of sincerity. Judges are more
likely to give sufficient reasons when they believe that the reasons they
give are sufficient. Otherwise, they would be offering as sufficient
reasons considerations that they believe do not justify their decision. All
things equal, such considerations are less likely to provide justification
than reasons that a judge believes are sufficient. For that reason, the duty
imposed by a principle of judicial sincerity can be understood as a
“subjective correlative” to the duty imposed by the principle of legal
justification. When judges fulfill their subjective duty they are more
likely to meet the duty to provide reasons that are actually or objectively
sufficient.75
Another reason to support a principle of judicial sincerity is based on
the epistemic value of actual publicity. As we have seen, unless judges
state the reasons that they believe are sufficient, they do not provide
others with an opportunity to challenge or support the justifications given
for their decisions. The failure to offer sincere public justifications
diminishes, and may even eliminate, the possibility of public deliberation
about the actual grounds for legal judgments. This reduces the overall
quality of judicial decisionmaking, and, for that reason, has deleterious
effects on the development of adequate justifications for legal decisions.
The principle of judicial sincerity preserves the epistemic benefits of
actual publicity. It promotes the aim of providing justifications, which
serve as the basis for the legitimate exercise of legal authority. Sincerity
is therefore necessary in maintaining the integrity of the justificatory
process.
75
Goldman, supra note _, at 34.
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B. Principles of Sincerity and Candor
1. From sincere public justification to judicial sincerity
As stated, the principle of judicial sincerity is deficient in at least one
important respect. Judges are required to give at least one reason, R, that
they believe is sufficient to justify their decision. Hence, the principle
can be described as demanding sincere public justification. Formally
speaking, however, the principle permits judges to assert reasons that
they do not believe. Provided judges give at least one reason they believe
is sufficient, they may then state additional reasons that are insincere.
Nothing in (PJS) prevents judges from couching or submerging their
sincere reasons within an opinion filled with insincere ones. Since the
principle of judicial sincerity is justified by the value of giving
justifications to litigants and those affected by a decision, it must take
into account the need to prevent disclosures that are calculated to
mislead others about the proper grounds of a decision.76 The value of
public justification supports a more general duty of sincerity. The
principle of judicial sincerity ought therefore to include a restrictive
clause, such that:
(PJS′): adjudication is legitimate only if (i) J sincerely believes that
R is sufficient to justify D, (ii) makes R known to those governed
by D, and (iii) publicly asserts only those reasons that J believes
are sufficient to justify D.
This principle requires disclosure of at least one (subjectively) sufficient
reason and the assertion of only those reasons that are (subjectively)
sufficient. It prohibits judges from offering reasons that they do not
believe justify their decisions. Judges may, of course, discuss reasons
that they do not believe, but they may not assert such reasons or offer
them as their own. To be sincere in what they make known to the public,
judges must distinguish the reasons they believe from those they do not.
2. From judicial sincerity to judicial candor
With this significant modification, the principle of judicial sincerity
covers some, but not all, of the ground usually occupied by conventional
understandings of judicial candor. Judges who conform with (PJS′) are
76
See Shapiro, supra note 1, at 732-33.
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required to disclose what they believe are sufficient reasons, but they are
not required to disclose all their subjectively sufficient reasons, or even
all the information relevant to their decisions. The duty of sincere public
justification is therefore more constrained than a general duty of candor.
To see this, consider again the example of Judge J who writes a
unanimous opinion announcing that the disposition, D, of a case is
justified by R1. Recall that J believes that R1 is sufficient to justify D, but
he prefers R2 because it would extend the law in ways he finds desirable.
Judges K and L reject R2, and they accept R1 as sufficient. To keep
everyone on board, J makes no mention of his preference for R2 and
writes an opinion based on R1. Has J been candid? Earlier, I argued that
our naked intuitions are probably not much use in answering that
question. If we think candor means something like “full disclosure of all
relevant information,” then J is not candid. If candor means giving an
honest opinion, then perhaps J is candid. Furthermore, if we adopt the
“full disclosure” definition of candor, then we may also want to ask
whether J has a duty to be candid in that sense of the word. Rather than
pursue these questions, I argued that what we need to know is whether J
has duty to disclose R2, and, if he does, whether he must be sincere about
it.
The principle of judicial sincerity only requires judges to offer what
they believe is a sufficient reason to justify a decision. This principle is
justified because judges have an obligation to give reasons to those
subject to their authority. That obligation is fulfilled when judges give
sincere justifications for their actions. Since there is no direct path to
objectively sufficient reasons, all that we can ask of judges is that they
provide considerations that they believe are adequate. When they have
met their obligation, the necessary conditions of legitimate adjudication
are satisfied. Thus, when J offers R1 as a sufficient reason, J has
performed the proper function of an adjudicator. J has given the parties
to the case, and all those governed by it, a reason that J thinks is
adequate to justify the outcome. No one can complain that J has failed to
meet his obligation. The judge believes the reason given and believes
that the litigants can reasonably be expected to accept it. When these
conditions are met, there is no reason to criticize the court for failing to
disclose any additional information. The judges have carried out their
duties to the parties and to everyone else affected by their decision.
Although sincere public justification of judicial decisions is required
for the legitimate exercise of legal authority, what I have been calling the
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epistemic value of publicity provides at least some support for the
broader conception of judicial candor as full disclosure of relevant
information. When J discloses R2, as he might in a concurring opinion,
he not only provides additional justification for the decision; he also
contributes to deliberation about the proper basis of the law. He offers an
alternative path that the court might have taken. Others may then subject
his proposal to scrutiny in determining whether the law is best developed
in the direction J has suggested. The public disclosure of supplemental
reasons can in this way improve our understanding of both the law and
the judge’s perspective on it. This is part of the reason why candor-asfull-disclosure is often valued in judicial opinions. It provides insight
into the judge’s legal reasoning, which is an important source of
guidance about how the law may be altered, clarified, and improved.
Even if the full disclosure of relevant information were possible—and
there is reason for thinking it is not77—complete candor would at most
be supererogatory. Judges who reveal everything they believe relevant to
a case surpass their duties to justify their decisions. They disclose more
than is necessary to fulfill their adjudicative responsibilities. In some
cases, this may provide significant benefits to readers of their opinions.
But in others, it may provoke needless hostility and incivility. For
example, Judge Posner reports that that an “increasingly common
manifestation of excessive judicial self-assertion is the abuse—often
shrill, sometimes nasty—of one’s colleagues.”78 Judges may think that
harsh or even abusive criticism is relevant because it makes known the
intensity or vehemence of their views. If candor requires that judges
disclose everything they believe is relevant, then we should not be
surprised when judicial opinions are filled with vituperative
denunciations. Indeed, critics of judicial candor have argued against a
duty of full disclosure for precisely this reason. Building on Judge
Posner’s observations about the lack of civility in judicial opinions, Scott
Idleman argues that “[g]ratuitous deprecations and ad hominem remarks
. . . are institutionally irresponsible . . . And yet, all of these comments
amount to candor, and all of these expressions of candor are in some way
relevant to the case, if only because they may help lawyers understand
77
See Shapiro, supra note 1, at 732 (arguing that full disclosure “may be both
unrealistic and unattainable, requiring of the speaker a never ending series of ‘deeper’
explanations”); cf. Elizabeth Markovits, The Trouble with Being Ernest: Deliberative
Democracy and the Sincerity Norm, 14 J. POL. PHIL. 249, 259 (2006) (“[F]ull disclosure
may be impossible, too lengthy, or may obstruct the point of the discussion.”).
78
Posner, supra note _, at 232.
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the dynamics within a court.”79 From this, Idleman concludes that “there
is a fundamental normative tension between the demand for candor . . .
and the widely recognized importance of maintaining an image of
legitimacy.”80 But there is no normative tension here because judges are
not under any cognizable duty to disclose everything they think relevant
about a case. A conception of judicial candor that requires such
disclosures, no matter how tenuously related to the justification of a
court’s decision, is a straw man that no proponent of candor has any
reason to defend. That judges sometimes decide to criticize each other in
disrespectful terms is something to be lamented. It is not, however,
required by any plausible account of why sincerity and candor matter in
the courts.
V. TWO OBJECTIONS
Because the principle of judicial sincerity occupies a middle ground
between not requiring judges to give their actual reasons and requiring
them to disclose all that they think relevant to a case, the principle can be
criticized in two directions. First, it might be objected that the principle
makes it difficult for judges on multimember courts to compromise in
their decisionmaking. If each judge must give a sincere justification for a
decision, it will be impossible in many cases to reach agreement.
Consequently, judicial sincerity will lead to fractured opinions,
diminished collegiality, and weaker institutional legitimacy.81 Thus, one
objection to the principle is that it requires too much sincerity.
A second objection, approaching matters from the other direction,
says that the principle does not require enough in the way of sincere
disclosure. Judges should be required to give what they think are the best
79
Idleman, supra note _, at 1392 (original emphasis); Oldfather, supra note _, at
157-58; Ellmann, supra note _, at 749.
80
Id.
81
To be clear, we should distinguish the concept of “political legitimacy” from that
of “institutional legitimacy.” As used above in II.B, political legitimacy is roughly
defined as a moral ideal according to which the exercise of coercive power must be
justified to those governed by it. By contrast, “institutional legitimacy” refers to the
level of public support for political institutions like the courts. This Weberian concept
of legitimacy is defined attitudinally according to people's beliefs about the authority of
social and political institutions. See A. John Simmons, Justification and Legitimacy:
Essays on Rights and Obligations 132-35 (2001) (discussing Weberian and normative
concepts of legitimacy); Richard H. Fallon, Legitimacy and the Constitution, 118
HARV. L. REV. 1787, 1795-1800 (distinguishing between “sociological” and “moral”
concepts of legitimacy).
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possible reasons for their decisions. They should not be permitted to
settle for compromise solutions. It is their duty to say what the law is,
which is not the same as expressing their second-best preferences.
Judges who are not in agreement about how to decide cases should
simply say so. Compromise is a political art better left to the other
branches of government. According to this objection, then, the problem
with the principle is that it doesn’t require enough sincerity.
In answering these two objections, I shall try to show that the
principle of judicial sincerity is not naïve or utopian. It may have
revisionist, and perhaps even radical, implications for judicial
decisionmaking. But it is not beyond the bounds of the feasible. Nor does
it compromise the duty to justify the law to those governed by it.
A. Too much sincerity
To motivate the first objection, consider the following schematic
example. Suppose judge J is asked to sign an opinion that includes two
reasons, R3 and R4, for a disposition, D. Written by judge K, the opinion
represents the sincere views of judges K and L. Suppose J strongly
agrees with the disposition of the case and thinks that R3 is sufficient to
justify the outcome.82 But J also thinks that R4 is incorrect. If J adheres
to the principle of judicial sincerity (PJS′), then J cannot sign the opinion
as it is currently written. He must ask K (and L) to revise it, or he must
refuse to sign the part of the opinion with which he disagrees. If K and L
refuse to modify their opinion, J must break with them and write
separately. Adherence to a duty of judicial sincerity leads in this case to a
fractured opinion, weakened precedent (in the sense that R4 will be
82
We could imagine other examples. Judge Wald has written that “[i]n a close case,
a would-be dissenter may agree to go along with a disfavored result if a disfavored
rationale is avoided.” Wald, Rhetoric of Results, supra note _, at 1379. A judge may be
more attached to a doctrinal justification than any particular result. Following this
thought, we could construct an example in which judge J disagrees with disposition D
but disagrees even more strongly with the reason given for it. Instead of dissenting, the
judge signs on to the disposition in exchange for the majority dropping the disfavored
rationale. I assume that examples of strategic action requiring sacrifices of sincerity
could be proliferated. Indeed, in the example offered above, judges K and L might
believe that both R3 and R4 are necessary to justify D. But they might offer to drop R4 if
J joins their opinion. Under these circumstances, K and L compromise sincerity for
unanimity. See Caminker, supra note _, at 2344-50 (discussing how candor might
constrain strategic action in multi-member courts).
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contested), and possibly a loss of collegiality among the judges.83
Moreover, insofar as the court’s institutional legitimacy rests on the
public perception of unanimity, judges who write separately also
undermine the authority of the court.84
The first response to this amalgamated objection is that it fails to
recognize the value of sincere public justification. It assumes that the
only way to justify a duty of judicial sincerity is to show that the benefits
of sincere decisionmaking outweigh the institutional costs. Aside from
the sheer speculative nature of such claims, it is not at all clear that
judges ought to engage in this type of cost-benefit calculation. As we
have seen, judges have a moral duty to provide what they believe are
sufficient justifications for their actions. They have a role-based
responsibility to give reasons for the exercise of coercive power. If they
fail to state such reasons, or if they state reasons they do not believe, then
they have abdicated that responsibility and sacrificed the underlying
ideal of political legitimacy from which it is derived.
To be sure, pragmatic objections to judicial candor can also be met on
their own terms.85 Although my purpose here has been to develop an
independent moral argument for judicial sincerity, it is perhaps worth
dispelling the notion that such a duty commits us to fiat iustitia, ruat
caelum. In fact, there is no reason to think that collegiality, precedential
stability or institutional legitimacy is threatened by judicial sincerity.
Taking collegiality first, judges on multimember courts understand and
expect that their colleagues will often disagree with them.86 It would be
unfortunate if a court’s collegiality was diminished by sincere or good
faith disagreement. Indeed, if that were true, there would be reason to
doubt the value of collegiality.87 But critics of candor have yet to make a
compelling case for the claim that sincere or candid decisionmaking
83
See Idleman, supra note _, at 1384. Idleman writes, “Full candor may be
impossible due to internal disagreement as to the precise grounds on which the outcome
of a decision should rest.” Id. (italics added). Technically, however, this claim is false.
Full candor, used here to describe sincere public justification, is always possible.
Judges may decide to sacrifice sincerity for the perception of unanimity, but they have
the option to write separately.
84
See Idleman, supra note _, at 1388-94.
85
See Shapiro, supra note 1, 738-49.
86
See Harry T. Edwards, Collegiality and Decisionmaking on the D.C. Circuit, 84
VA. L. REV. 1335, 1360 (1998).
87
See Richman and Reynolds, supra note _, at 324 (noting potential costs of
collegiality).
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disrupts relationships on multimember courts. There is some anecdotal
evidence that judges act insincerely to promote efficiency in opinionwriting or to secure preferred legal outcomes.88 But there is little, if any,
to suggest that sincere behavior would lead to diminished
professionalism or collegiality.
The same criticism applies to the claim that judicial sincerity would
undermine the strength of precedent and create confusion about the
meaning of majority or plurality opinions. There is simply no evidence to
substantiate the argument that an increase in the number of opinions
would produce such harmful consequences. First, as Shapiro has noted,
the use of seriatim opinions remains common practice in countries where
the stability of law is not remotely in question.89 Second, sincere
opinions might well increase legal certainty by providing litigants with
more information about judges’ views.90 Third, any resulting expansion
in the number of judicial opinions would pale in comparison with the
number of decisions that will become citable under recent federal
proposals involving unpublished opinions.91 If, as many have argued,
rule of law values justify making available for citation tens of thousands
of unpublished opinions,92 then surely those values are important enough
to place judges under a duty to include in those opinions only statements
of law that are sincere.
Perhaps the most frequent objection to a general duty of judicial
candor is that some amount of dissembling in necessary to maintain the
88
See Posner, supra note _, at 343; Wald, supra note _, at 1374.
Shapiro, supra note 1, at 743; see Ginsburg, supra note _, at 133-134 (discussing
the use of seriatim opinions in the British tradition); cf. John P. Kelsh, The Opinion
Delivery Practices of the United States Supreme Court 1790-1945, 77 WASH. U. L. Q.
137, 140-41 (discussing Supreme Court’s use of seriatim opinions in pre-Marshall era).
90
See Walter V. Schaefer, Precedent and Policy, 34 U. CHI. L. REV. 3 (1966) (“The
older practice of filing separate opinions helped considerably to eliminate the inherent
element of unreliability in judicial decisions. But the working bar does not like multiple
opinions. Paradoxically, the dislike seems to be based on a desire for certainty.”).
91
See Symposium, Have We Ceased to be a Common Law Country? A
Conversation on Unpublished, Depublished, Withdrawn, and Per Curiam Opinions, 62
WASH. & LEE L. REV. 1429 (2005) (discussing Rule 32.1 of the Federal Rules of
Appellate Procedure, which would require federal courts of appeal to permit citation of
unpublished opinions); Anne Coyle, Note, A Modest Reform: The New Rule 32.1
Permitting Citation to Unpublished Opinions in the Federal Courts of Appeals, 72
FORDHAM L. REV. 2471 (2004).
92
See Richman and Reynolds, supra note _, at 281-286; Pether, supra note _, at
1528-1535.
89
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institutional legitimacy of the courts. As Idleman argues, “The first
potential source of institutional legitimacy—or, if absent, a potential
source of diminished legitimacy—is unanimity or near unanimity in
judicial opinions.”93 Once again, however, this argument is wholly
speculative,94 especially as applied to appellate courts that are not subject
to nearly the same level of public scrutiny as the state and federal
supreme courts. There is no doubt that past United States Supreme Court
justices have gone to great lengths to achieve unanimity in highly
controversial cases. Brown v. Board95 and Cooper v. Aaron96 are perhaps
the two most cited modern examples in which unanimity was thought to
be essential to the Court’s legitimacy.97 It is difficult to know exactly
what effect non-unanimity would have had in these cases. But the
argument that the Court’s unity helped to secure compliance with its
decisions in Brown and Cooper cannot withstand scrutiny in light of all
that we know about massive resistance.98 Whether unanimity has had
longer-term benefits is a difficult and murky question best left to
historians.99 More recent examples of highly charged cases suggest,
however, that even an extremely divided Supreme Court can maintain
broad-based public support. The most obvious example is Bush v.
Gore.100 Despite early claims that a polarized Court had caused itself
irreparable damage, no legitimation crisis has materialized.101 This is not
93
Idleman, supra note _, at 1388.
Cf. Caminker, supra note _, at 2350. In discussing the possibility that judges
might candidly disclose vote-trading, a radical practice by conventional standards,
Caminker writes that “the premise that open vote trading would diminish judicial
respect, equally speculative as the claim we started with that dissembling would breed
disrespect, remains undefended as yet.” Id.
95
347 U.S. 483 (1954).
96
358 U.S. 1 (1958).
97
See Idleman, supra note _, at 1389-90.
98
See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME
COURT AND THE STRUGGLE FOR RACIAL EQUALITY 389-407 (2004) (describing massive
resistance in the Deep South following the decisions in Brown and Cooper); see also
Gewirtz, supra note _, at 668-74 (“But it is hard to believe that the Court’s failure to
acknowledge the true reasons for ‘all deliberate speed’ produced less resistance than a
candid and careful explanation would have.”).
99
See, e.g., Ellmann, supra note _, at 770-71 (discussing “whether unanimity really
made a great difference to Brown”).
100
531 U.S. 98 (2000).
101
See Jeffrey L. Yates and Andrew B. Whitford, The Presidency and the Supreme
Court after Bush v. Gore: Implications for Institutional Legitimacy and Effectiveness,
13 STAN. L. & POL'Y REV. 101 (2002) (arguing that Bush v. Gore will not have longterm effects on the Court’s institutional legitimacy); John C. Yoo, In Defense of the
Court’s Legitimacy, in THE VOTE: BUSH, GORE, & THE SUPREME COURT 223, 225-227
94
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to say that Bush v. Gore was a candid opinion.102 I take no position on
that question here. The only issue is whether unanimity is required for
institutional legitimacy. In the wake of Bush v. Gore, it is increasingly
difficult to take that argument seriously.
B. Not enough sincerity
A second objection to the principle of judicial sincerity approaches
the issue from the opposite direction. Instead of claiming that the
principle requires too much sincere disclosure, the argument here is that
it does not require enough. We have already seen the beginning of this
objection in discussing the distinction between judicial sincerity and
candor. There, I argued that judicial sincerity does not require judges to
write separately for the purpose of disclosing all that they believe is
relevant to a decision. This claim is open, however, to the objection that
judges ought to give what they believe are the best possible justifications
for their legal conclusions. Anything less is the result of compromise
based on judicial politics rather than a decision grounded in principle.
This objection is supported by two additional points. First, proponents of
it would not require candor in the sense of “full disclosure” and would
therefore not be subject to the criticism that they demand either the
impossible or the absurd.103 The objection only challenges the “sufficient
reason” formulation of the principle of judicial sincerity. It would
replace this version of the principle with one based on best possible
justifications—or some similar heightened epistemic requirement.
Second, as I noted above, the value of actual publicity supports
introducing the strongest possible justifications into public deliberation.
This enables others to challenge and scrutinize them. For this reason, one
might argue that the principle of judicial sincerity is weaker than it needs
to be. After all, why should judges refrain from stating the best reasons
for their legal decisions?
Although I am generally sympathetic to this objection, it appears to
foreclose the possibility of principled compromise. Judges who are
indifferent between two reasons for a decision can state either one. But a
judge who believes that one reason is preferable to another, even though
(Cass R. Sunstein & Richard A. Epstein eds., 2001) (noting resilience of public support
for the Court even after Bush v. Gore).
102
Compare Dworkin, supra note _, at 54-55, with Posner, supra note _, at 331-47,
349-51.
103
See infra at _.
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either would be sufficient, must announce the better reason, regardless of
what other judges believe. Perhaps a thorough-going purist would
require the disclosure of the best available justification, but there is room
here for compromise without sacrificing the underlying ideal of
justifying legal authority to those governed by it. Judges who disagree
about what constitutes the best possible justifications might nevertheless
converge on a sufficient reason. In reaching such an agreement, they
may be able to promote other values of adjudication, including some of
those mentioned above. The cost of writing separately may not be high,
but, where there is common ground on sufficient reasons, incurring such
costs is also unnecessary, and perhaps even wasteful. Once the
requirement to give adequate justification is met, there is no reason that
other considerations should be excluded from playing a role in judicial
decisionmaking.
This reply to the objection helps to explain a piece of conventional
wisdom about the duty of judicial candor. Shapiro writes that “the
prevailing view of the judicial function (and one I fully accept) would
support the judge who, as an individual, does not go as far as he might be
willing to if the case before him does not require it.”104 A judge who
goes only as far as the case requires can be understood as having
provided a sufficient justification for a decision; whereas, at least on
some theories of adjudication, a judge who goes beyond what the case
requires might be seen as offering the best possible justification.
Although the latter may be commendable, it is not obligatory. And for
that reason, there is no failure of sincere justification, or, in Shapiro’s
terms, no problem of candor.
VI. THE LIMITS OF JUDICIAL SINCERITY
The duty to conform with a principle of judicial sincerity is supported
by weighty moral and political values. Because judges wield the power
of the state, they must show that their decisions are justified according to
the law. When the law is morally illegitimate, however, judges are faced
with a conflict between their role-based duties and the moral rights of
those subject to their decisions. In such cases, judges must decide
whether to apply the law faithfully, openly reject it, resign, or subvert the
law by making insincere assertions about what it actually requires.105
The conditions under which it is morally permissible or obligatory to
104
105
Shapiro, supra note 1, at 736.
See ROBERT COVER, JUSTICE ACCUSED 6 (1975); Shapiro, supra note 1, at 749.
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choose the last of these options represent the limit of the principle of
judicial sincerity. To specify that limit would require a more complete
account of political legitimacy, including a description of the proper
circumstances for civil disobedience.
Even without such an account, however, it is important to recognize
that a judge who violates the duty of judicial sincerity undermines the
value of legal justification. The judge must weigh that value against the
moral right protected by the act of subversion. He or she must come to
the conclusion that the parties to adjudication, and all others governed by
the decision, are not owed a justification for it. Or if they are owed a
justification, one cannot be given because of the profound immorality of
the legal and political system to which they are subjected. I would argue
that this sort of global condemnation ought to occur rarely in most
constitutional democracies.106 But to evaluate that claim requires
appealing to a broader political theory within which the role-based
obligations of judges are justified. I have discussed only a limited range
of values within such a theory, focusing mainly on an ideal of
legitimacy. Although that ideal embodies important values, there are
other moral considerations that may weigh against it. To the extent that
the limits of judicial sincerity require an all things considered moral
judgment, what can be said here is that, except under extraordinary
circumstances, the values which support the principle should give judges
strong reasons not to violate it.
CONCLUSION
The argument for the principle of judicial sincerity is based on the
moral value of giving people reasons for the way in which the state treats
them. This justification for the principle is grounded in deontological
reasoning about the necessary conditions of legitimate adjudication.
Such an approach has two important benefits. First, it avoids many of the
most intractable controversies over theories of adjudication. Judicial
ethics does not require a complete account of how judges should make
decisions. It can rest on a more abstract model of the judicial role.
Second, and perhaps more important, a moral argument for judicial
sincerity helps to correct an imbalance in recent commentary about the
duties of judges. Most critics and defenders of judicial candor have
106
See Shapiro, supra note 1, at 750 (“Thus in a society that aspires to be just, the
situation in which a judge might reasonably feel compelled to lie should be extremely
rare.”).
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framed their arguments in pragmatic or prudential terms. For the most
part, I have not tried to engage such arguments, except to show that the
principle of judicial sincerity is not infeasible or utopian. Rather, my aim
has been to develop an independent argument using the concepts of
sincerity, publicity and justification. That argument incorporates some
consequentialist claims about the value of actual publicity in improving
the quality of judicial decisionmaking. But those claims serve the more
fundamental value of justifying legal authority to those subject to it. That
value is one that pragmatists have obscured in their criticisms of the
conventional wisdom supporting a duty of judicial candor. They have
made it difficult to see why that duty has been considered so important in
the process of adjudication. The appropriate response is to provide an
account of the duty that clarifies its content and explains its motivation
and appeal. If the argument above is successful, it will have done just
that.
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